92 Decision Citation: BVA 92-18039
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-01 116 ) DATE
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THE ISSUES
1. Whether there is new and material evidence to reopen the
appellant's claim for service connection for the cause of
the veteran's death and, if so, whether that benefit should
be granted.
2. Whether there is new and material evidence to reopen the
appellant's claim for basic eligibility for
nonservice-connected pension benefits.
ATTORNEY FOR THE BOARD
P. B. Werdal, Associate Counsel
INTRODUCTION
This matter came before the Board of Veterans' Appeals
(hereinafter Board) on appeal from a decision dated
January 22, 1991, and a letter dated November 4, 1991, from
the Manila, Philippines, Regional Office (hereinafter RO).
The veteran had service as a recognized guerrilla from
February 3, 1944, to August 1, 1945. The notice of
disagreement was received December 17, 1991. A statement of
the case was sent to the appellant January 15, 1992. A
substantive appeal was received January 30, 1992. The
appeal was received at the Board February 28, 1992, and was
docketed March 3, 1992. The appellant is not represented in
this appeal.
REMAND
The appellant contends that her husband's death was the
result of his service-connected gunshot wounds and seeks
dependency and indemnity compensation. In the alternative,
she contends that she is entitled to nonservice-connected
pension benefits. The Board observes that the claims folder
does not contain a copy of the veteran's terminal hospital
records from the Veterans Memorial Medical Center in Manila,
Philippines. The Board also observes that the claims folder
does not contain much information regarding treatment the
veteran received during his lifetime. Furthermore, in the
1950 rating decision service connection was granted for
injuries to muscle groups XXII and XXI. However, in the
subsequent decisions the RO referred to muscle groups XX and
XXIII.
In addition, the Board notes that in a decision dated May
25, 1984, the RO denied the appellant's claims. That
decision is final, and cannot be reopened unless new and
material evidence is submitted. 38 U.S.C. §§ 5108, 7105(c)
(1992). In Manio v. Derwinski, 1 Vet.App. 140 (1991), the
United States Court of Veterans Appeals (hereinafter Court)
set out a two-step analysis of cases in which a veteran has
attempted to reopen a final decision. The first step
consists of deciding whether new and material evidence has
been submitted since the previous final decision. New and
material evidence is evidence not previously submitted to
agency decision makers which bears directly and
substantially on the specific matter under consideration,
which is neither cumulative nor speculative, and which by
itself or in combination with other evidence previously
assembled is so significant that it must be considered in
order to fairly decide the merits of the claim. 38 C.F.R. §
3.156(a) (1991); Colvin v. Derwinski, 1 Vet.App. 171
(1991). If it is determined that the evidence is new and
material and the claims are reopened, the next step is to
review all evidence, both old and new, to determine whether
the benefit should be granted. An adverse determination
regarding either step is appealable. In
Abernathy v. Derwinski, U.S. Vet.App. No. 90-1068 (May 20,
1992), the Court made that two-step analysis applicable to
claims regarding pension benefits. In this case, it must be
determined whether new and material evidence has been
submitted since the RO's 1984 decision sufficient to reopen
the claims and, if so, whether that benefit should be
granted based on the all the evidence.
The Department of Veterans Affairs (hereinafter VA) has a
duty to assist in the nonadversarial process of claims
adjudication. 38 U.S.C. § 5107 (1992). That duty includes
obtaining copies of medical records. Littke v. Derwinski,
1 Vet.App. 90 (1990). In this case, the RO should attempt
to obtain copies of records reflecting treatment the veteran
received after separation from service.
Under the circumstances of this case, the Board is of the
opinion that additional development is necessary.
Accordingly, this matter is REMANDED for the following
action:
1. The RO should obtain the terminal
hospital records from the Veterans
Memorial Medical Center, Manila,
Philippines. Those copies should be
associated with the claims folder.
2. The RO should contact the appellant
and obtain the names and addresses of all
doctors and facilities which treated the
veteran. The approximate dates of
treatment should also be ascertained.
The RO should then obtain copies of those
treatment records not already in the
claims folder, and associate them with
the claims folder.
3. The RO should then review the
evidence submitted since the RO's May 25,
1984, decision and determine whether new
and material evidence sufficient to
reopen the previously denied claims has
been submitted. The RO should note that
the muscle groups identified in the 1954
rating decision are XXI and XXII. If it
determines that the claims have been
reopened, it should then review all the
evidence, both old and new, and determine
whether the benefit(s) should be
granted. If the determination regarding
either step is adverse to the appellant,
she should be provided a supplemental
statement of the case that fully
addresses the two-step analysis set out
in Manio, supra, and that summarizes the
relevant evidence, and explains the
reasons for the adverse determination(s)
and the laws and regulations applicable.
Following completion of the requested development, the RO
should review the appellant's claims. If the matter is not
resolved to her satisfaction, she should be provided a
supplemental statement of the case that contains a summary
of the relevant evidence and a citation to and discussion of
the applicable laws and regulations. The purpose of this
REMAND is to assist in developing the claims, and no action
is required of the appellant until further notice. The
Board expresses no opinion, either factual or legal, as to
the ultimate determination warranted in this case pending
completion of the requested development.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
G. H. SHUFELT
C. D. ROMO
38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
Under 38 U.S.C. § 7252 (1992), only a decision of the Board
of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of
a preliminary order and does not constitute a decision of
the Board on the merits of your appeal.